The Palm Beach Legal Precedent

No cause for Dem squawking

According to some Florida
Democrats, the particular layout of ballots in Palm Beach was
confusing to voters, and resulted in mistaken votes for Buchanan which
were actually intended for Gore. The Florida judiciary has already
addressed the issue of post-election claims about ballot confusion,
and the precedent is unfavorable to those who want the election
overturned.

In
the September 10, 1974, Republican primary in Pinellas County, several
losing candidates brought a post-election suit against county election
officials. (Pinellas sits on the Gulf Coast, and includes St.
Petersburg.)

At
issue was the longest ballot in Pinellas County history. To save space
so that every candidate and issue could fit on the voting machine, the
election officials had created a ballot on which the list of
candidates for some offices appeared on two lines. In a particular
race, for example, the first three candidates, listed alphabetically,
appeared on one line, and the last two candidates, alphabetically,
appeared on the next line.

A
lawsuit demanding a new election was filed by candidates who appeared
on the lower line and lost. The Florida trial court agreed. But on
October 15, 1974, the Second District Court of Appeal unanimously
overturned the trial judge, and let the original election stand. (Nelson v. Robinson, 301 So.2d 508, Fla. Ct. App. 2d Dist., 1974.)

The Court of Appeal explained:

Keeping in mind that we are talking about a claim made after an
election, and not one which may have been enforceable before, if a
candidate appears on the ballot in such a position that he can be
found by the voters upon a responsible study of the ballot, then such
voters have been afforded a full, free and open opportunity to make
their choice for or against that particular candidate; and the
candidate himself has no constitutional right to a particular spot on
the ballot which might make the voters' choice easier. His
constitutional rights in the matter end when his name is placed on the
ballot. Thereafter, the right is in the voters to have a fair and
reasonable opportunity to find it; and as to this, it has been
observed that the constitution intended that a voter search for the
name of the candidate of his choice and to express his of the
candidate of his choice without regard to others on the ballot.
Furthermore, it assumes his ability to read and his intelligence to
indicate his choice with the degree of care commensurate with the
solemnity of the occasion.

The Court of Appeal also cited a U.S. Supreme Court case in which the
high Court explicitly and unanimously affirmed a Pennsylvania federal
court which had ruled that an unfavorable location on the ballot was
not a form of unconstitutional discrimination against a candidate. (Gilhool
v. Chairman & Com'rs., Philadelphia Co. Bd. of Elec.,
306 F.Supp. 1202 (E.D.Pa.1969), aff'd 397 U.S. 147 (1970).)

In
Palm Beach this year, the ballot form was approved beforehand by
Democratic Supervisor of Elections Theresa LePore. This fact relates
directly to the Florida Court of Appeal's point that "it has often
been held that one who does not avail himself of the opportunity to
object to irregularities in the ballot prior to the election may not
object to them after."

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